POLICE ACCOUNTABILITY

POLICE ACCOUNTABILITY IN INDIA: POLICING CONTAMINATED by POLITICS


Introduction

India is a union of 28 states and 7 union territories. Under the Constitution of India, the ‘Police’ are a State subject. This means that they are the responsibility of State governments. The organisation and working of the police forces are governed by rules and regulations framed by the state governments.

Each state/ union territory has its own separate police force. In addition, there are central police organisations set up by the union government for specialised work. The total combined strength of the state/union territory police forces on 1.1.2003 in the country was 14,68,776. In addition, the strength of the five central para-military organisations alone was 6,01,328.

This huge reservoir of trained manpower, more than two million in strength can become a very important catalyst of positive change in society provided they are made to serve the rule of law and held accountable for their sins of commission and omission, if any. The issue of holding them accountable is very closely linked to the type of control and superintendence exercised over them.

This paper discusses the subject of police accountability in India in four parts. The first part describes the main features of the police system established by the British in this country and shows how the idea of making the police accountable to anyone outside the establishment did not fit into the colonial model of policing introduced in this country. The second part argues that though the post Independence India witnessed changes on many fronts, the police system, in its basic structure, methods of work and lack of public accountability remained more or less unchanged. It also discusses some developments that resulted in strengthening the executive control over the police and leading to an increasing abuse of police forces and misuse of police powers. The third part talks about the need to make the police accountable, especially in the context of citizens’ complaints against police personnel and discusses the mechanisms that exist, both within and outside the department, to ensure accountability. The concluding portion sums up the discussion and suggests that the need for police reforms is too important to be neglected and too urgent to be delayed.

1. The Police System - A Colonial Legacy

The Police as an organised institution in this country came into existence with the Police Act of 1861. This legislation was passed in the wake of the Indian Sepoy Mutiny of 1857, when the Indian soldiers in the colonial army revolted against their British commanders. The mutiny later developed into a rebellion against British rule in India. Though the revolt was quelled speedily and successfully, it did jolt the British into taking many steps to consolidate their rule in India, including the establishment of an authoritarian police force to support the colonial government.

The British realised that to perpetuate their rule in this country, they must have a police force that was totally subservient to the executive. The executive must exercise complete and unquestioning control over the police force. Section 3 of the 1861 Police Act vested the superintendence of the state police forces in the state governments. The same Act introduced a system of dual control at the district level. It put the police forces under the command of the District Superintendents of Police, but subject to the “general control and direction” of the District Magistrates. This was done deliberately because the functioning of the District Magistrate as the chief officer of the district was considered essential for the maintenance of British rule in India. Under the system of police governance established by the 1861 Act, the police forces in India were unaccountable to anyone except their own hierarchy and the colonial political and administrative executive. Making the police accountable to the community or other democratic or local indigenous institutions did not fit into the British colonial model of control.

The British structured the organisation in a way so that the senior positions in the force would be occupied by them and the junior slots would be kept for ‘natives.’ Section 7 of the Police Act of 1861 uses the words “inferior officers” for those occupying the lower ranks in the police. Even when the senior posts were Indianised in due course, the elitist bias was not forsaken. Family background always weighed heavy in picking candidates for senior vacancies. They realised that a system based on feudal values prevalent in the Indian society would work effectively in ensuring that the rank and file, which constituted the bulk of the force, remained loyal, subservient and accountable to their seniors within the organisation and government.

This gave rise to a managerial philosophy, which was based on distrust of the lower ranks in the organisation. The natives were not to be trusted. This distrust is reflected in the provisions of law also. For example, under Section 162 of the Criminal Procedure Code, the statement of a witness recorded by the police during investigation is not to be signed by the person making the statement and it can not be used during trial for any purpose other than that of contradicting the witness if he differs from it. Similarly, Section 25 of the Indian Evidence Act, 1872 says that confessions recorded by a police officer shall not be admissible in evidence.

The police was raised on a militaristic and authoritarian pattern. There was tremendous emphasis on maintenance of a type of discipline, which bordered on regimentation, requiring the lower ranks to obey orders blindly. The system did not require the constabulary to put on their thinking caps while performing their duties. They in fact were not required to have any. That is why recruitment to constabulary stressed on the requirements of brawn and not brain. The taller and heftier the recruit, the better. During training, his physical fitness and endurance must improve. It was for this reason that the training programmes in the police were biased heavily in favour of outdoor activities, like drill. He need not be educated, but he must have an intimidating presence, that should deter not only the criminals but also ordinary citizens. In his presence, nobody should raise questions or demand answers.

All the above factors combined to produce a system, which situated the bulk of the police force at a distance from the community. Understandably, the 1861 Act failed to produce an efficient, professional and an accountable police force in the country. This was realised by the colonial rulers themselves. For example, the Indian Police Commission appointed in July, 1902 under the chairmanship of Sir A.H.L. Fraser concluded:

”The police force is far from efficient; it is defective in training and organisation; it is inadequately supervised; it is generally regarded as corrupt and oppressive; and it has utterly failed to secure the confidence and cordial co-operation of the people.”

The Commission made many recommendations but either failed to recognise or conveniently ingnored the fact that most of the ills afflicting the organistion could be ascribed to the system established by the Police Act of 1861 and the philosophy of policing that was prescribed. The Commission, despite themselves unearthing massive evidence to the contrary, concluded that the system introduced in 1861 was on the whole a wise and efficient system.

2. Post Independence Developments

The advent of Independence changed the political system, but the police system remained more or less unaltered. The Police Act of 1861 continued to govern it. Its managerial philosophy, value system and ethos remained what they were. The powers granted to politicians and bureaucrats to exercise control and superintendence over the police remained the same. They were a ruler or establishment supportive police force, considerably distant from the community and they continued to remain so.

Though the country has been independent for more than 57 years, till now, no government, central or state, has taken the initiative to replace the Police Act of 1861 with new legislation, which would be in tune with requirements of democratic policing.

It is not as if no new legislation has been passed. Some state governments have enacted new legislation since Independence to govern the functioning of their police forces. For instance, the Police Forces in Maharashtra and Gujarat are governed by the Bombay Police Act of 1951, in Kerala by the Kerala Police Act of 1960, in Karnataka by the Karnataka Police Act of 1963, in Delhi by the Delhi Police Act of 1978. Some State Governments have also framed separate legislation to regulate the working of their State Armed Police Forces. The enactment of these laws after Independence has not brought about any significant improvement in the organisational structure, performance or behaviour of the Police Forces. The reason - the new enactments were patterned on the model of the old 1861 legislation. They are as silent and remiss about the new requirements of democratic policing as the colonial legislation was. In fact, some of these state Acts, like the Bombay Police Act, 1952 further tightened the executive control over the police force, without introducing any safeguards to prevent the misuse of police force for partisan purposes and without incorporating effective mechanisms to ensure police accountability. How this Act failed to prevent the misuse of police force was clearly seen during the communal riots of 2002 in Gujarat

Police during the Emergency

For a couple of decades after Independence, it did not matter much, as the standards of leadership, in both politics as well as police, were quite good. Gradually, however, the standards started declining, with politics becoming increasingly contentious and criminalised, leading to a perceptible decline in the quality of control exercised over the police and increasing misuse of the organisation by people in positions of power for partisan interests. Almost all the State Police Commissions, the National Police Commission and other expert bodies, which inquired into the problems of the police in India, found overwhelming evidence of misuse of the police by politicians for narrow selfish ends. This was particularly seen during the period of Emergency (1975 – 1977) when the police committed atrocities on a wide scale. The brazen manner in which the police were misused during this period prompted the government that came to power at the center after the Emergency to appoint the Shah Commission of Inquiry. The Shah Commission unearthed considerable evidence to prove that during the period of Emergency, some police officers behaved as though they were not accountable at all to any public authority. In its report, the Shah Commission told the government: “employing the police to the advantage of any political party is a sure source of subverting the rule of law”, and asked the central government to take measures to insulate the police from illegitimate political and executive interference.

National Police Commission

In response, the Government of India appointed the National Police Commission (NPC). The NPC was asked to make a comprehensive review of the police system, having regard to the far- reaching changes that had taken place in the country after the enactment of the Indian Police Act of 1861, the report of the last Police Commission of 1902 and particularly those changes which had taken place since Independence. The NPC had fairly wide and comprehensive terms of reference, including a fresh examination of the role and performance of the police, both as a law enforcement agency and as an institution to protect the rights of citizens enshrined in the Constitution. One of its most important terms of reference required it to recommend measures and institutional arrangements to prevent misuse of powers by the police and misuse of the police by politicians or other pressure groups.

During the period between 1979 and 1981, the NPC produced eight reports. Some major recommendations centering around the problem of insulating the police from illegitimate political and bureaucratic interference included: (i) setting up of a Security Commission in each state to see that the government exercises its superintendence over the police in an open manner within the framework of law; (ii) prescribing a selection procedure that would ensure the appointment of the best officers to head the state police force; (iii) giving these officers a fixed minimum tenure so as to reduce their vulnerability; (iv) amending rules so that arbitrary transfers of police officers done without authority would become null and void; and (v) replacing the Police Act of 1861 with a new Police Act.

None of the above recommendations of the NPC has been implemented. These recommendations perturbed the entrenched elite at the prospect of losing control over an organization, which they have been misusing for so long. Politicians and bureaucrats have developed a great vested interest in retaining control and superintendence over the police organization and in letting the status quo continue.

Criminalisation of Politics

In fact, the situation has become worse since the NPC made its recommendations. Over the last few decades, there has been a large influx of criminals into the Indian polity. The Election Commission of India estimated in the late 1990s that 40 members of Parliament and 700 members of State Legislative Assemblies had criminal records.

As the nexus between the criminals and politicians becomes stronger, it is able to subvert the loyalty of the functionaries at different levels in the government, including the police. Criminalisation of politics has gradually led to undermining the authority of the police leadership and consequently the discipline of the force. The police are a hierarchical organisation. If the effectiveness of the leadership is undermined, the entire force becomes vulnerable to wrong influences, with the functionaries at different levels looking elsewhere for protection and rewards. Besides breeding indiscipline in the force, it promotes a climate in which impunity flourishes. It ultimately shakes the confidence of the public in the police.

Failure of the criminal justice system

The public are unhappy not only with the police but with the functioning of other agencies of the criminal justice system. Crime has registered an increase. For example, the total cognizable crime registered under the Indian Penal Code (IPC), according to Crime in India figures, increased from only 6.25 lakhs in 1951 to 17.2 lakhs in 2003. The total cognizable crime in 2003 was about 55 lakhs, including 37.8 lakh offences registered under the local and special laws.

When there is an upsurge in criminal activities or a particularly heinous crime is committed, the public tend to blame the police. The general tendency is to hold the police solely responsible for any increase in crime. This attitude is reinforced by the manner in which the police react to public criticism. They either quote crime statistics, which are not too impressive or point out inadequacies of manpower and equipment at their disposal.

Crime statistics in any case are not very reliable. A common complaint against the police is that they do not register crime fully. Concealment or burking of crime is quite common. One major reason for this is that police performance is evaluated on the basis of crime statistics. This, according to the NPC, encourages “the police to adopt questionable methods of recording and controlling crime and even resorting to illegal acts.” They suggested that “correct registration of crime” be adopted as one of the yardsticks to evaluate police performance. However whenever this is done, it leads to a tremendous increase in crime figures, resulting in an outcry in the press and the legislature and causing considerable embarrassment to the government. The police revert again to the old evil of concealing crime by not registering it. This results in denying access to justice to a large number of people, particularly those belonging to poor and marginalised sections of society.

When a large number of persons, after committing crimes, are allowed to get away and justice is not meted out to victims or cases drag on in courts for umpteen number of years, it results in eroding the faith and confidence of the public in the effectiveness of the system.

More than an increase in crime, it is the failure of the system to deal promptly, justly and effectively with those who commit it that has been responsible for the loss of faith and confidence of the public in the effectiveness of the system. There has been a steep decline in the conviction rate. While in 1971, the conviction rate of IPC offences (number of cases convicted to total number of cases tried)was 62%, by the year 2003, it had declined to about 40%. Justice is being denied as well as delayed. The courts are clogged with huge arrears of cases under trial. According to the 61st report of the Parliamentary Standing Committee on Home Affairs, 25 million cases were pending trial in different courts in the country.

The citizens expect the State to establish the rule of law and provide them freedom from crime and violence. The State’s failure to do so gives rise to public fear of crime and criminals. Fear of crime feeds on itself and always grows at a rate faster than crime. It is public fear of crime, which sometimes provides a license to the police to ignore the law and deal with crime and criminals by using rough and illegal methods. Blinding of criminals done by Bhagalpur Police way back in early eighties was one example of such license. This has been followed by other incidents. Police deviance is bound to increase whenever the fear of crime whips up the rhetoric of war against crime, criminals and terrorists. What the public want is a feeling of security and are not always willing to question the methods used by the police in achieving their success in the fight against crime and criminals.

Terrorism and organized violence

It becomes all the more difficult to hold the police personnel accountable for their misdeeds committed in areas affected by the problem of terrorism or other forms of organized violence. A number of states, like Punjab and J&K witnessed considerable terrorist violence in the last few decades. In such areas, rule of fear reigned supreme and people did not come forward to give any support or cooperation to security agencies. The functioning of courts was affected badly and cases against terrorists if brought before the courts by the police did not get settled. The government in such situations invariably used the opportunity provided by the accelerating fear of crime and violence to arm itself with repressive powers. It introduced ‘black’ laws, which enhanced the powers of the police and curtail citizens’ rights. The police got virtually a free hand and frequently committed violations of human rights. Complaints of human rights abuses received against police personnel from such areas often included arbitrary arrests, incommunicado detention, excessive use of force, disappearances, custodial violence and extra-judicial executions. The government generally overlooked complaints against security personnel on the ground that action taken in such cases would demoralise the police forces and weaken their resolve to crush organised violence with a heavy hand. This has happened in several areas. For example, in Punjab, gross violations of human rights during the hey-days of terrorism were overlooked by the State and to some extent even by the public.

Impunity

Usually, where the police are needed by government to deal with serious or significant law and order problems of political significance such as terrorism, police excesses get state implicit or even explicit approval, if not encouragement and support. In some cases, the assurance of impunity is granted in advance. An example could be found in the address given on April 30, 1998 by the then Chief Minister of Uttar Pradesh (UP) Mr. Kalyan Singh. The Chief Minister, while addressing the state police officers at a law and order review meeting in the state capital, said:

“I want performance results. I want you to take a vow that you will create a dhamaka (explosion) in the state. If noted criminals can be liquidated in encounters, do it. If you take the life of one person who has taken the lives of 10 others, then people will praise you. And I am here to protect you.”

This concern for maintenance of law and order does not inspire confidence in the public because the credentials of political leaders expressing such concern are themselves questionable. As an editorial in a newspaper said in connection with a similar call made to the police force in the same state by a different Chief Minister: “As it is, many of his ministerial colleagues, cutting across political affiliations, have a criminal background. Surely their presence in positions of power can only encourage criminals….…..The right place for criminals is neither jungles nor the Assembly but behind bars.”

When the assurance of impunity comes from the highest quarter in the State, police officers become emboldened to misuse their powers or to become silent spectators to incidents involving major violations of law. They know that they cannot be asked to account for their acts of dereliction of duty or misdeeds. This was particularly noticeable during the incidents of communal violence in Gujarat that occurred during February-April, 2002 The police were not able to control the riots, which continued for more than three months and caused tremendous loss of lives and property of the members of the minority community. There is considerable evidence to show that the police were complicit in many cases and did not come to the rescue of the victims. There are reports that the state government was biased against the minority community and did not want the police to quell the riots effectively.

The danger of the public also turning a blind eye towards the use of illegal methods by the police is particularly manifest in areas where the terrorists or insurgents or criminals belong to minority communities and their crimes of violence are targeted against members of majority community. The public in such cases may not take serious notice of violence committed by police personnel against people suspected to be terrorists or their supporters.

There is a provision in law that enables the government to provide impunity even in proven misdeeds. This provision is contained in Section 197, Criminal Procedure Code, under which a public servant cannot be prosecuted without the sanction of the appropriate authorities for acts done “while acting or purporting to act in the discharge of his official duties.” The purpose of this provision of law is to ensure that frivolous and vexatious complaints are not filed against police officers to demoralise them and dissuade them from performing their duties. However, it is a fact that this provision of law has been abused to provide protection to police officers even in serious cases of misconduct. This happens because of nexus between politicians, bureaucrats and police officers, which deliberately delays or denies sanctions for prosecutions. The National Police Commission’s recommendation that protection available to the police officers under Section 197 of the Cr.P.C. 1973 be withdrawn has not been accepted.

Double Standards

The police feel that the government as well as the public sometimes adopt double standards in dealing with them. When the problem of terrorism is at its peak, they are given a free hand to deal with it the way they think fit, but once normalcy and peace return, their methods are questioned. This happened especially in Punjab, where after the state was rid of the problem of terrorism, the civil society groups became active and started demanding that police personnel be held accountable for all the wrongs they did during the earlier days. The Times of India in September 1997 cited figures from the Union Home Ministry stating that 123 police officials were facing trial for using illegal methods against terrorists. In addition, 2,555 petitions had been filed against Punjab police officers by individuals and human rights organisations. The grievance of the police was that no one came forward to support or assist them during those difficult times when they and their families had to bear the brunt of terrorist onslaught. As many as 1500 policemen lost their lives while fighting terrorists during the five-year period 1988-1992 in Punjab, but once the problem was over, mainly due to police efforts and sacrifices, they were being asked to account for the methods they used.

3. Police Deviance and Accountability mechanisms

There is ample evidence of increasing police deviance in India. Incidents of brutality, extortion and other crimes committed by police officers in different parts of the country are reported in Indian newspapers. The National Human Rights Commission’s data shows that the number of complaints relating to ‘deaths in police custody’ reported to them increased from 136 in 1995-96 to 183 in 2002-03. During the same period, ‘illegal detention/arrest’ increased from 112 to 3595, and other ‘police excesses’ from 115 to 9622.

The majority of complaints received by the National Human Rights Commission (NHRC) are against police personnel. Even the official statistics indicate that the number of public complaints against the police received by police departments is very high. The report of the National Crime Records Bureau (NCRB), a Government of India organisation, shows that during 1997, as many as 1,23,523 complaints against the police were received from the public, though by the year 2003, the number had declined to 55115.

The existing mechanisms for calling the police account for their actions can be discussed broadly under two main headings:

1. Internal Accountability Mechanisms.
2. External Accountability Mechanisms

Internal Accountability Mechanisms

The internal mechanisms for holding individual police officers accountable for their actions are contained in the Police Act of 1861, the state governments’ Police Acts and in rules laid down in state Police Manuals. The Police Act of 1861 authorises senior police officers of the rank of Superintendent of Police and above to dismiss, suspend or reduce the rank of any police officer of subordinate ranks whom they think remiss or negligent in the discharge of his or her duties or unfit for the same. They are also authorised to impose one or more of the other punishments, including (a) fine not exceeding one month's pay, (b) confinement to quarters not exceeding 15 days, (c) deprivation of good conduct pay, and (d) removal from any office of distinction or special emolument.

In addition, the Police Act of 1861 lists the following offences for which a police officer can be disciplined: (i) a wilful breach or neglect of any rule or regulation or lawful order; (ii) withdrawal from duties of the office or being absent without permission or reasonable cause; (iii) engaging without authority in any employment other than his police duty; (iv) cowardice, and (v) causing any unwarrantable violence to any person in his custody. The penalty for these offences ranges between fine of up to three months' pay to imprisonment up to three months or a combination of both.

The rules divide punishments into ‘major’ and ‘minor’. Though the rules differ from state to state, generally, dismissal, removal, reduction in rank or pay and forfeiture of service are regarded as ‘major punishments’. They cannot be imposed on any police officer without conducting a regular departmental inquiry. It is only after the inquiry proves the charges against the accused police official that a major penalty can be imposed. Minor punishments include censure and reprimand. They can be imposed without conducting any departmental disciplinary proceedings.

To give major punishments to guilty police personnel is difficult and takes time because the procedure of conducting departmental inquiry is highly elaborate, cumbersome and time consuming. Even if the charges are proved, the delinquent police officer can and generally does go to the court against the findings and punishment imposed.

Unfortunately, the authority of police leadership in India has been eroded over time by political interference, leading to loss of discipline in the force and the promotion of a tendency at different levels within the police to seek outside patronage for rewards and to be shielded against punishment. This is one of the major reasons for the ineffectiveness of departmental mechanisms to ensure police accountability.

It is imperative that any arrangement for inquiry into complaints against the police should be acceptable both to the police and public as fair and just. This was recognised by the National Police Commission. In their First Report, the Commission suggested arrangements, whereby inquiries would be conducted by departmental authorities and also by an independent authority outside the police. The Commission felt that a large number of complaints against police should be looked into and disposed of by the supervisory ranks in the police hierarchy, but a judicial inquiry should be made mandatory in the following categories of complaints against the police:

• alleged rape of a woman in police custody;
• death or grievous hurt caused while in police custody; and
• death of two or more persons resulting from police firing in the dispersal of unlawful assemblies.

However, the government has not accepted these recommendations. The response of the government to the recommendations of the NPC has never been made public.

In any case, the departmental mechanisms for dealing with police misconduct do not always inspire public confidence. There are allegations that police departments sometimes suppress incidents of misconduct by individual police officers because the revelation of the facts could damage the image of the organisation. Inquiries into citizens’ complaints against the police are not credible. There is general public distrust emanating from the fact that the police themselves conduct the enquiries. In 2001, the Prime Minister’s Office (PMO) reprimanded the Delhi Police for treating shoddily public complaints against police officers referred to it by that office. According to the PMO “The field reports prepared at the district level are generally evasive, there is a lack of sensitivity, lapses of police are concealed and emphasis is mainly on statistical disposal.”

External Accountability Mechanisms

Judiciary

The courts constitute one of the most important external mechanisms of ensuring police accountability. While writ petitions and public interest litigations can be filed in higher courts, criminal prosecutions can be launched in lower courts. A number of significant judgments have been passed by the higher courts, prescribing safeguards or guidelines to regulate police conduct during arrest, interrogation and other stages of investigation, asking the government to pay compensation in cases of custodial violence, commenting adversely on the police for showing discrimination in the handling of communal and caste conflicts and passing strictures in many cases where defective or inadequate police investigation was noticed. On December 18, 1997, the Supreme Court delivered a landmark judgement aimed at insulating the Central Bureau of Investigation and the Directorate of Enforcement from outside influences so that they could function efficiently and impartially, to serve the rule of law. The Judgment also declared null and void, the Single Directive, which required the CBI to seek permission from the government before undertaking any inquiry or investigation against senior civil servants of the rank of Joint Secretary and above. However, the government has succeeded in diluting the effect of this judgement by passing the Central Vigilance Commission Act, 2003, which has brought the Single Directive back and put it on the statute book.

One major problem is the absence of any mechanism to constantly monitor the implementation of the courts’ judgements and take the defaulting government or other parties back to the courts.

Citizens can, of course, file private complaints to the courts to seek redress. However, this is rarely done. This is partly because of ignorance and partly because accessing courts is time consuming and costly and inhibits the average person’s ability to use the courts for redress.

Human Rights Commissions

The human rights commissions established under The Protection of Human Rights Act, 1993 (the Act) provide another means of holding the police accountable in cases of misconduct. The most important of these commissions is the National Human Rights Commission (NHRC), which was established on October 12, 1993.

The NHRC undoubtedly has some achievements to its credit, in terms of its efforts to make the police accountable for their actions. However, the Commission’s work has suffered due to certain infirmities and deficiencies in the law governing its functioning.

The Commission is supposed to be completely independent in its functioning, but there are certain provisions in the Act, which underscore the dependence of the Commission on the Government. The Act makes it dependent on the government for some of its requirements, like manpower and finance.

More importantly, the Act does not authorise the Commission to enquire into complaints of violations of human rights committed by the members of the armed forces. “Armed Forces”, as defined in the Act, means not only the naval, military and air forces but also some central armed police organizations, like the Border Security Force.. The Act obviously weakens the NHRC’s effectiveness in providing redress to the public in cases where violations have been committed by members of these forces, which are often deployed on law and order duty in disturbed areas. All that the Commission, under the Act, can do is to call for reports from the Central Government in such cases and then make recommendations to the Government or not “proceed with the complaint” at all. There have been cases where the central government has sometimes denied it even the records sought by it. In its latest report, the Commission regretted “the lack of cooperation extended to it through the denial of access to records requested by it in respect of trials conducted against members of the para-military forces accused of human rights violations.”

Furthermore, under the Act, the Commission has no power to enforce its decisions. According to the Act, where the enquiry conducted by the Commission discloses a violation of human rights, it can only advise the government to take action against the guilty persons or grant relief to the victim. If any State government refuses to accept the advice, there is no provision in law which empowers the Commission to force the government to implement its advice. It can of course approach the higher courts and seek directions.

In many respects, the human rights commissions have acted as a check. The problem, however, is that an institution like the NHRC in a country of India’s size becomes too remote from the scene to be effective in many cases. A large number of police atrocities are committed in small towns and villages of India, where people are not aware either of the Commission’s existence or of its procedures. Most State Governments have yet to set up their own Commissions. Till now, only fourteen out of twenty-eight states have established human rights commissions. Even where these bodies have been established, all of them are not functioning viably. The NHRC, in its report for the year 1999- 2000, expressed its disappointment with the slow pace with which State Governments were acting to constitute State Human Rights Commissions. It also noted that not all human rights commissions that had been established were being appropriately supported through the provision of adequate financial and manpower resources. More or less similar sentiments have been expressed in the latest report of the NHRC for the year 2002-03. The Commission has referred to the “unhappiness” expressed by certain state human rights commissions “over the difficulties they are experiencing in terms of lack of support, both financial and otherwise.”

It will take time and some amendments in law to make the human rights commissions in India sufficiently strong, independent and vibrant to ensure the accountability of state institutions and protection of citizens against violations of their rights.

Non-government organizations

NGO activities relating to the police are broadly of two types: (1) those concerned with violations of human rights committed by police officers and (2) those concerned with reforms in the working of the police organisation. The former group of activities include bringing police atrocities out in the open and putting pressures on the government to take action against the police. Police or government reaction to NGO allegations is usually that of denial. The government is generally reluctant to expose police abuse of power as it could be used against them by the opposition. However, where the documentation of human rights violations is authentic and supported by irrefutable evidence, the government is forced to take action. But documenting human rights violations committed by police personnel poses a major challenge to the NGOs. The task is quite daunting not only because of the intimidating nature of the work but also because of lack of expertise. The NGO’s lack of expertise makes it difficult for them to advocate successfully for concrete alternative plans for restructuring the police or recommend programmes for action within the existing framework. For example, during the communal violence in Gujarat, the police did not register the complaints of many of the victims of communal violence who belonged to minority ethnic groups. Many of these victims were denied compensation as well as access to criminal justice. While a large number of NGOs were very eager to help the victims, they could not do much because of their own ignorance of law, the police and court procedures.

One problem faced by NGOs advocating for police reforms is the non-availability of information about government’s plans and programmes concerning the police. The police are very reluctant to share information with outsiders, particularly the NGOs. This hampers the work of the NGOs, especially with regard to police reforms.

More importantly, there is an element of distrust between the NGOs and the government in the country. The government feels that although the NGOs are ever ready and willing to condemn the police at the drop of a hat, they have no alternative plans to suggest. Those NGOs that receive foreign funding are under greater suspicion. Generally, the government regards NGOs as the mouthpieces of the opposition parties or of international pressure groups. Another perception about them is that they are selective in denouncing human rights violations. While violations by security forces of the country are violently denounced by them, more heinous violations committed by terrorists are not even criticized. This perception is shared even by certain sections of the public.

Media

One of the most vigilant watchdogs over the police functioning in this country is the media. The media in India enjoys a wide measure of freedom. It has enormous reach and power. Technological advances witnessed during the last few decades have revolutionized the world of communications and opened frontiers, which were hitherto unknown to the media or beyond its reach. Any violation of human rights occurring anywhere in the country can be known to the rest of the country in no time, provided the media takes it up.

The media has shown great interest in reporting on human rights violations committed by police officers. What happened in Gujarat during communal riots last year (2002) was known to the rest of India and the world mainly through the efforts of the media. However, the known incidents of police misconduct or abuse of power are far less than those that take place but are not known. The media’s coverage sometimes is inadequate and selective. Most media organisations in this country, as in other parts of the world, are either state or corporate owned. The media has taken interest in projecting issues and areas which are lucrative, not necessarily those that are of public interest. Political news, politicians and celebrities have dominated the media coverage. Bias and lack of sensitive appreciation of issues involved have affected the quality of coverage, the selection of subjects and contents. The tendency to sensationalise issues and events has often been noticed.

On the whole, the mainstream national media have been far better than the regional media in covering human rights violations and holding state agencies accountable. Some newspapers in Gujarat deliberately spread rumours, distorted facts and did their best to promote the hate campaign against the minority community. As the Human Rights Watch pointed out: “ While the national Indian press has played an important role in exposing the violence and official neglect or misconduct, sectors of the local press have been accused of inciting the violence.” It became difficult to hold the editors and management of the local press accountable for violating criminal law, besides infringing their own code of ethics, because they had the support of the state government.

The government has occasionally tried to pressurize or intimidate the media, which has exposed corruption or abuse of power by politicians and senior bureaucrats. Recalcitrant media persons have been subjected to raids by income tax and law enforcement authorities and harassed in other ways. For instance, this happened recently to the editor and staff members of Tehelka. Com, an internet portal that succeeded in video tapping some important politicians, bureaucrats and army officers accepting bribes and fixing arms deals with decoy arms dealers belonging to Tehelka. According to Vir Sanghvi, Editor, the Hindustan Times, a national newspaper: “The message in all this is quite direct: if anyone ever tries to expose corruption in the way in which Tehelka has done, they will face the full might of the government of India. It worries me that as journalists, we are allowing the government to get away with all this” (The Sunday Hindustan Times, 14 July, 2002).

4. Summing Up

Providing a sense of security to the ordinary citizens and attending to their grievances is dependent on the establishment of a police force, which is efficient, honest and professional to the core. The fact that such a police force does not exist in India is attested to by the findings of the various commissions and committees, the complaints received by the human rights commissions, the stories reported by the press and the experiences of the common people on the streets. The need for police reforms is self evident and urgent.

The reforms package must include the establishment of statutory institutional arrangements, which would ensure that the power of superintendence of the state government over the police force is limited to guarantee that police performance is in strict accordance with law. In other words, the police function to establish rule of law and not the rule of politics. This would require insulating them from outside illegitimate control and giving them functional autonomy. Once the police are given functional independence, they must be held accountable for the wrongs they do. The existing mechanisms of accountability must be strengthened and improved. In addition, new mechanisms, working independently to monitor the functioning of the police and to inquire into public complaints against the police, must be established.

(Original version of the article that was published in the Solidarity,September 2005- A publication of the Asian Human Rights Commission and Asian Legal Resource Centre, Hong Kong.)

POLICE REFORM IN PAKISTAN

POLICE ORDER 2002- WILL IT LEAD TO POLICE REFORMS IN PAKISTAN?


The police forces in the South Asian countries, like India, Pakistan, Bangaladesh and Sri Lanka are generally known to be highly oppressive, corrupt, rude, apathetic towards the poor people and highly subservient to people in positions of power. Through out history, they have functioned as “defenders of establishment” and not as catalysts of positive social change.

The countries in this region inherited regime police forces as part of their colonial legacies. The type of police system established in these countries was governed more by considerations of maintaining the colonial rule rather than providing sensitive and people friendly policing. Unfortunately, even after the countries became independent, the police system was not changed. The same Police Act of 1861 or legislation modeled on that Act continued to govern the policing in the region. What suited the colonial rulers matched the interests of the new ruling classes too. They realised that as long as the executive exercised total unquestioning control over the police, it would be easy to misuse the police to further their own interests.

Initiatives to reform the police were taken. For instance, in India, a The National Police Commission (NPC) was set up in 1977. It made numerous recommendations to insulate the police from outside illegitimate control. The Commission recommended that though the superintendence over the police force should vest in the state government, the power of superintendence “should be limited for the purpose of ensuring that police performance is in strict accordance with law.” For this purpose, they recommended the establishment of a State Security Commission. At the district level, the Superintendent of Police should not be subject to the general control and direction of the District Magistrate. The NPC also recommended that the selection of the Chief of the State Police Force should be made from a panel of not more than three Indian Police Service officers of that cadre prepared by a Committee headed by the Chairman or member of the Union Public Service Commission. Another recommendation was that the chief of police in a state should have a fixed minimum tenure of four years so that he can function independently without fear. These recommendations of the NPC fell on deaf years. Neither the central nor the state governments in this country acted upon them.

It is in this context that the initiative taken by the Government of Pakistan by promulgating the Police Ordinance in 2001 to replace the Police Act of 1861 must be considered highly laudable. As per its Preamble, the Police Ordinance 2001 promulgated by the President of Pakistan aimed at organising a police system, which is “independently controlled, politically neutral, non-authoritarian, people friendly and professionally efficient.” Even though the text of the Ordinance (2001 Ordinance) has been significantly altered since then, firstly by the Police Order of 2002 (the 2002 Order) and again by the Police Order (Amendment) Ordinance of 2004 (2004 Amendment), the initiative still retains a blueprint for police reforms that is worth a try. If implemented earnestly, it can beacon others to follow. The Government of Pakistan has definitely stolen a march over other governments in the region by replacing the old archaic Police Act of 1861 with a piece of legislation that can help in changing the regime police force of the colonial times into a democratic modern police service.

Some major changes proposed to be introduced through the Police Order of 2002 can be discussed under the following heads:

Superintendence over the police force

Though the Order still vests the superintendence of the police force in the government, it clearly prescribes that the power of superintendence “shall be so exercised as to ensure that police performs its duties efficiently and strictly in accordance with law.” In addition, the Order fills a very important gap in law by defining the word ‘superintendence’ to mean “supervision of Police …through policy, oversight and guidance” and specifying that while exercising it the government shall ensure “total autonomy” of the police officer in “operational, administrative and financial matters.” In other words, if the superintendence of the government extends beyond policy prescriptions, oversight and guidance and impinges on the total autonomy of the police in certain matters, it is illegitimate exercise of superintendence.

Public Safety Commissions

To ensure that this does not happen, the 2002 Order proposes the establishment of Public Safety Commissions at the federal, provincial and district levels. The composition of the commissions, particularly those at the provincial and district levels, has of course been changed and their charter significantly modified by the 2004 Amendment. For instance, Article 80 (b) of the original 2002 Order required the Provincial Public Safety Commission to “prevent the police from carrying out any unlawful or malafide orders or directions from any authority to any functionary of the police” and in case such orders or directions come to the notice of the Commission, it “shall have the powers to intervene and its decision shall prevail”. The clause authorising the Commisson to intervene has been dropped in the amended version and the other clause has been significantly watered down. However, even in its diluted form, Article 80(b) is substantial enough to help in reducing police vulnerability to outside pressures and influences as it still requires the Commission to “take steps to prevent the Police from engaging in any unlawful activity arising out of compliance with unlawful or malafide orders.” In addition, this provision has been added to the charter of the Commission at the district level too through Article 44 (e) - a provision that did not exist in the original 2002 Order.

Two points about the composition of the commissions are strikingly noticeable. One is the heartening mandatory provision that one third of members of commissions at all three levels shall be women. The other is the provision about the selection of independent members. The Order provides for the constitution of a Selection Panel to select independent members and prescribes criteria for selection.

Police Accountability

One would have of course preferred the Police Complaints Authorities at the district and provincial levels to retain their separate status as envisaged in the original scheme. Unfortunately, these have now been merged with the Public Safety Commissions through the 2004 Ordinance. The logic of this amalgamation is not clear, probably guided solely by economic considerations.

Police accountability has two facets. One relates to the performance of the police organization and the other to the behaviour of the individual police person. While the Public Safety Commission can be considered as a mechanism to promote the efficiency and integrity of the organization, the Police Complains Authority is essentially meant to ensure that the complaints of the citizens against individual police misconduct or negligence are inquired into speedily, impartially and effectively. Merging the two functions into one body would make the accountability mechanism somewhat unwieldy and weak. It also goes against the worldwide trend to establish multiple mechanisms of accountability and setting up separate independent commissions to inquire into public complaints against police personnel.

In any case it is not clear why the Police Complaints Authority has been retained in its original form at the federal level. It is mainly at the provincial and district levels that people interact with their police closely and it is at that level that most complaints against police personnel arise. The citizens’ interactions with the federal law enforcement agencies are comparatively few and far between. If the government has considered it necessary to have a separate Police Complaints Authority at the federal level, one fails to understand why the two bodies have been merged at the provincial and district levels.

The Provincial Public Safety and Police Complaints Commission is authorised to receive complaints, inquire into them itself or get the inquiry done by the government officers. Based on the results of the inquiry, it can recommend action to the competent authority for departmental action or registration of a criminal case. The 2002 Order, however, does not make it mandatory for the Commission to conduct its own inquiries even into those complaints, where it is obligatory for the head of the District Police to inform the Commission, as in “any incident or a complaint of rape, death or serious injury to any person in police custody” (Article 36). The silence of the Order as to how the Commission will deal with such complaints or incidents tells its own tale. In India, the National Police Commission had recommended that there should be a mandatory judicial inquiry into complaints of rape, death or grievous hurt caused while in police custody and death of two or more persons resulting from police firing in the dispersal of unlawful assemblies, but the recommendation was never accepted by the government.

Control at the district level

The system of dual control at the district level established by the Police Act of 1861 has been abolished by the Order. The administration of the district police is vested solely in the head of the district police, who is no longer subject to the “general control and direction” of the district magistrate. However, Section 33 of the 2002 Order makes him responsible to the Zila Nazim for “police functions,” except in respect of “administration of the district police, investigation of criminal cases and police functions relating to prosecution.” There are two worrying signs. One is clause 3 added to Article 33 in the Order by the 2004 Ordinance, by which the Zila Nazim has been authorized to write the Performance Evaluation Report of the head of the district police, “which shall be taken into consideration at the time of promotion of the officer.” The Nazim’s assessment has to state whether the officer is suitable for promotion or not. Anyone familiar with the system of performance evaluation in the government knows how subjective such assessments sometimes are and how menacing is the invisible influence that the system exerts on the will of officers. Two, the provision that existed in the 2001 Ordinance that except the head of the district police force no other officer of the district police shall be answerable to the Zila Nazim has been removed. The 2002 Order in fact authorizes the Zila Nazim to visit a police station and issue directions in appropriate cases concerning unlawful detention. Article 35 of this Order further authorizes the Zila Nazim to direct the head of the district police to take remedial measures in cases of “police neglect, failure or excess” There is nothing wrong about these provisions, provided it can be ensured that these do not lead to (i) politicizing the police at local level, (ii) breaking the departmental chain of command and (iii) building up of an unholy nexus between the Nazim and the police in the districts. If Indian experience is anything to go by, the chances of this happening cannot be ruled out fully.

Selection and Tenure of the head of the Police Force

For the health of the police force in the province, it is important that the prescribed process of selection must produce the right man to head it. The 2001 Ordinance envisaged the existence of three parties in the selection process. According to Article 8 of the Ordinance, selection would be done by (i) the provincial government (ii)“with agreement of the Provincial Public Safety Commission,” out of a panel of three police officers prepared by (iii) the National Public Safety Commission. The original 2002 Order removed the Provincial Public Safety Commission from the scene. The Provincial Government would do the selection out of a panel of three police officers recommended by the National Public Safety Commission from a list provided by the Federal Government. The 2004 Amendment did away with the National Public Safety Commission too and now only two parties are left to manage the selection process- the federal government would recommend a panel of three and the provincial government would appoint one from that list. None of the two commissions, the federal or provincial, is left with any role to play in the selection of the provincial police chief.

Once a person is selected to head a police force, his tenure must be secured so that he can function without fear or favour. The legislation recognizes this principle and fixes a term of three years for the head of the provincial police force, but allows his transfer before the expiry of the term. Article 9 of the 2001 Ordinance authorised the Federal Government to transfer a provincial police chief before the expiry of his term, but “with agreement of National and Provincial Public Safety Commission.” The original 2002 Order gave this authority not to the Federal but to the Provincial Government and they could do it only with “agreement” of the Provincial Public Safety Commission. The 2004 Amendment once again got rid of the Commissions and specified that only the governments would do this. The Provincial Government would have to do it with the “approval” of the Federal Government, while the latter could do it on its own.

Thus the decision to select the chief of the provincial police force or to remove him from that post rests solely with the governments and the public safety commissions will have no say in the matter.

Transfer of Officers

The 2002 Order, in fact, prescribed a fixed tenure of three years for the head of the police force not only in the province but also in the district. The District Police Officer could of course be transferred before the expiry of his term on grounds of inefficiency and ineffectiveness but this would have to be done with the (i) concurrence of both the Zila Nazim and the (ii) District Public Safety Commission and that also (iii) after he has been heard in person by the Commission. The 2004 Amendment has prescribed that the head of the district police can be transferred before the expiry of his term “under exceptional circumstances due to exigency of service or on grounds of misconduct and inefficiency which warrant major penalty” but this has to be done “with the approval of the Government." Thus while the 2004 Ordinance has removed all the three conditions laid down by the 2002 Order, it has added ‘misconduct’ as a ground for premature termination of tenure. However, the disquieting feature of the amended scheme is that the decision to terminate involves only two parties now- the chief of police and the government in the province.

An important addition to law is the provision introduced by the 2004 Amendment. It has added a proviso to the clause (4) of Article 21 of the 2004 Order, thereby stipulating that officers posted in the district like the heads of the police division, sub division and the police station will all have a fixed term of 3 years in their posts. Any transfer before the completion of term can be done only due to “exigency of service or misconduct warranting major penalty.” All this is fine on paper, but now that the role of the public safety commissions has been eliminated in matters relating to postings and transfers of police officers, one will watch with interest the implementation of scheme in practice. “Exigency of service” cannot have a cut and dried definition; it can always be interpreted to mean what the head in the government or department considers to be expedient.

According to Article 22 of the 2002 Order, the government can transfer any police officer from one ‘general police area’ to another. This clause, though perfectly valid, can always be misused if the rules framed under this Article do not provide enough safeguards to prevent the misuse of this power or they are not implemented in right earnest. In India, one of the most prominent reasons for the vulnerability of the police to illegitimate pressures from the executive is the threat of transfer that always hangs like a sword of Damocles on the head of the police chief and other officers, particularly when they try to resist pressures. Transfer is one weapon frequently used by the politician to bend the police down to his will. It is not always easy to take statutory punitive action against police personnel under the disciplinary rules, but transfers can be effected on grounds of administrative expediency without difficulty.

Summing Up

To what extent the new legislation succeeds in turning the police in Pakistan into an independent, neutral and people friendly force, only time will tell. It will depend partly upon the type of institutions set up, how well led and resourced they are and how independently and transparently they function; and partly on how the police organizations respond and take steps to change their culture and ethos from within.

A legislation is only as good as it is enforced; otherwise it is only a piece of paper. Let’s hope that the Government of Pakistan shows the same foresight and will in implementing it earnestly as they did in legislating it. With all its shortcomings and inadequacies, it is still the only piece of legislation of its kind in a region that badly needs reform in the police forces. Most governments in the region are yet to realize that police reforms are too important to neglect and too urgent to delay.

POLITICISATION OF POLICING

THE PONTIFF, POLICE AND POLITICS


Jayendra Saraswati’s case is becoming more and more intriguing everyday. Has there ever been a murder case where the Prime Minister of the country writes to the Chief Minister, advising caution in arresting an accused? In this case, he does, gives the same advice again when he meets her in person in Chennai and his office later brings it on record and makes that advice public. The Chief Minister replies the next day and informs the PM and others that what she has done is “in furtherance of due processes of law”

And probably it is in furtherance of the same due processes that Vijayendra Swarasti is arrested on the same charges immediately after the senior pontiff is released on bail by the Supreme Court. It took Tamilnadu Police more than a couple of months to realise that the junior man is also involved in crime and has committed the same offences as his elder guru.

It will be for the courts to decide who is guilty and who is not and one should leave it at that. However, this case, like so many other past cases of its ilk reported from Tamilnadu and other states, clearly brings into focus a highly disturbing fact- the increasing politicisation of police that has occurred in the country over a period of time and the fact that this is now readily accepted by all. The general public perception is that whatever is happening to Kanchi mutt pontiffs is because the Chief Minister wants it to happen. It is accepted unquestionably that the police would always be ready to do whatever right or wrong they are asked to do by their political masters. It’s too bad if someone becomes a victim. The police credibility is so low that even where action taken against a person is perfectly legitimate and is as per the law, the public suspect the police of mischief.

It was sad to see the headlines of one of the national newspapers of January 11: “Jaya arrests Kanchi Jr”, as if Jaya is a Sub Inspector of Police. We in this country have become so accustomed to seeing the politicians issuing unauthorized orders to the police that no eyebrows are raised on seeing such headlines. Because of the ugly realities of governance in this country, we forget the statute book. It is none of the business of the Chief Minister to decide who should be arrested or not arrested. It is wrong to think that it is an executive decision; it is not. Arresting a person suspected to be involved in the commission of a cognizable offence is a part of the process of law enforcement and has, therefore, to be governed by the provisions of law. The criminal procedure code does not empower any person or agency outside the law enforcement machinery to take such decisions.
The villain to some extent is that old and archaic piece of legislation governing the police in this country called the Police Act of 1861. The Act gives the government the authority to exercise superintendence over the police, without defining the word ‘Superintendence’ or prescribing some guidelines to ensure that the use of power will be legitimate. The Act does not mandate the police to function as a professional organization; nor does it establish any institutional and other arrangements to insulate the police from undesirable and illegitimate outside control, pressures and influences. The result is that the politicians have found it very easy to misuse the police for furthering their own partisan and vested interests. That is why though the country has been independent for more than 57 years, till now, no government, central or state, has taken the initiative to replace the Police Act of 1861 with new legislation, which would be in tune with the requirements of democratic policing, insisting that the police should be subject to the rule of law, rather than the wishes of a powerful leader or party; that they should intervene in the life of citizens only under carefully controlled circumstances; and that they should be publicly accountable. In the absence of such a law, Jayalalitha and other politicians succeed in getting whatever they want done through their police forces.

The senior leadership in the police in this country cannot be absolved completely of their responsibility in contributing to this state of affairs. The desire of some of them to beat their colleagues in the race to the top and being eager to implement all orders, right or wrong, to get and retain coveted postings is often exploited by the politicians to bring the whole organisation to act at their bidding. Transfer is an important weapon used by the politicians to bend the police officers to their will. In the Jayendra Saraswati’s case, the DGP gets transferred the day after the Supreme Court’s judgement in the bail case is delivered. The DGP of course cannot be held responsible for grant of bail to the accused, but the idea in all such decisions is to send a message to the next incumbent and through him down the line that extra efforts must be made to see that the politician’s wishes are complied with.

It’s time we realized the wisdom of what a very eminent and seasoned police officer of the earlier years, late Mr. P.R.Rajgopal wrote: “When the police at different levels are used by the people in authority to break or even to bend the law to sub-serve doubtful ends, those concerned will have set the police on the high road to many more serious violations of law and in more important areas.” The tragic events that happened in Gujarat a few years ago have proved Mr Rajgopal correct, but we have not learnt our lessons.

MANAGING HUMAN RESOURCES IN THE POLICE

MANAGERIAL PHILOSOPHY OF THE POLICE IN INDIA

The most important task of management in any organisation is to motivate people to develop team spirit, which fulfils the needs of individual employees and simultaneously helps in achieving organisational goals. The extent to which the management succeeds in performing this task depends upon the broad managerial philosophy that shapes its policies and programmes of action. The managerial philosophy of the leaders in turn is actually conditioned by their beliefs about human nature, particularly of their subordinates.

The police is a hierarchical organisation, with its structure having the shape of a pyramid. The base of the pyramid is very wide, but the cone keeps on tapering as it attains height. The constabulary (Constables & Head Constables) accounts for about 88% of the total police strength. Inspectors, Sub-Inspectors and Assistant Sub-Inspectors constitute about 11% of the total police strength. The officers i.e DySP/ASP upward to DGP account for less than 1% of the police strength. It is a very small group of officers belonging to senior ranks, who decide the policies of the organisation, issue instructions to be followed by the rest of the force and supervise the work of the subordinates.

As long as the quality of communication between the seniors and junior subordinate ranks in the police is good, things work out smoothly. Unfortunately, a big gap exists between the senior and lower ranks in the police in this country and the quality of communication between the two is generally very poor. Indeed over a period of time, it has only become poorer. Sometimes, one gets an impression that the seniors and lower ranks constitute two opposite camps, with a fairly big gulf of distrust dividing them. The problem needs to be discussed in its historical perspective.

The British raised the police in this country on a militaristic and authoritarian pattern. There was tremendous emphasis on maintenance of a type of discipline, which bordered on regimentation, requiring the lower ranks to obey orders blindly. The system did not require the constabulary to put on their thinking caps while performing their duties. They in fact were not supposed to have any. That is why recruitment to constabulary stressed on the requirements of brawn and not brain. The taller and heftier the recruit, the better. He need not be educated, but he must have an intimidating presence. During training, his physical fitness and endurance must improve. It was for this reason that the training programme of the constabulary was always biased heavily in favour of outdoor activities, like drill.

The British also structured the organisation in a way so that the senior positions in the force would be occupied by them and the junior slots would be kept for ‘natives.’ Even when the senior posts were Indianised in due course, the elitist bias was not forsaken. Family background always weighed heavy in picking candidates for senior vacancies. They realised that a system based on feudal values prevalent in the Indian society would work effectively in ensuring that the rank and file, which constituted the bulk of the force, remained loyal and subservient to their seniors within the organisation and outside.

This gave rise to a managerial philosophy, which was based on distrust of the lower ranks in the organisation. The natives were not to be trusted. The only way to make them work was to keep on showing the rod and occasionally dangle a carrot before them. This distrust of the police station staff is seen in the system of records maintained at the police station level. A large number of records, with the same entry figuring in more than one, were deliberately prescribed, so that the seniors during formal inspections or even on casual visits to the police station could catch the lower staff on the wrong foot. The same distrust is reflected in the provisions of law also, like those relating to the FIR, maintenance of Case Diary, Station Diary, recording of statements of witnesses, confessions etc.

Even after Independence, this mind set has not changed. The managerial values are still feudal. In fact, nothing has ever been done to change them. The system of recruitment and training has remained the same. A very senior retired police officer Ved Marwah has mentioned that all that happened after Independence was that “the brown sahibs replaced the white sahibs.” According to Mr. Marwah, “ a sort of caste system has developed… An artificial distinction has been created between the supervisory ranks and the ranks actually performing police duties. As a result, professionalism in the force has suffered.”

A large chunk of the force is recruited from the lower strata of society, while the seniors joining the organisation come from educated upper strata. The culture gap between the lower and senior ranks further reinforces the feelings of distrust between the two.

An IPS officer joins the organisation at the level of Assistant Superintendent of Police. He has thus already jumped over five ranks (i.e Constable, Head Constable, Assistant Sub-Inspector, Sub-Inspector and Inspector of Police) without doing even one day’s police work. This deprives the officer of the practical experience of doing field police work in all those ranks and understanding the problems faced by lower ranks working at grass root level. The type of field-work done during the district training can never substitute the actual experience gathered while working in different ranks as a part of normal progression of career, accepting all the responsibilities attached to the job at various levels.

The CHRI recently did a study on Police Public Interface in nine selected police stations in three states, viz. Assam, Rajasthan and Tamilnadu. Perceptions of police personnel of lower ranks were studied. The perceptions clearly indicated the existence of a feeling amongst the lower ranks that their problems are not appreciated by their seniors; that they are often left in the lurch; and that they do not get support even when they have done no wrong. The police personnel at the station level are highly dissatisfied with their working and service conditions. Their salaries are low; they do not have any fixed hours of work; family accommodation is not available to majority; and they have very little to look forward to in terms of career advancement. There is a feeling amongst them that while the seniors keep on getting their promotion in due time, the lower level police station staff have to wait long and even then only few get what is their due.

They are always under constant pressure to produce results according to what their seniors want. The requirements of seniors are often determined by what the politicians want. Adoption of short cuts by the police station staff or malpractices in which they sometimes indulge, according to them, is generally the result of these pressures.

The lower level staff in the police also feel that decisions regarding their postings, transfers, rewards, suspensions, dismissals and other punishments are often taken on extraneous considerations and are not merit or justice based.

The lower ranks in the police also complain that their self-esteem is affected by the behaviour of their superior officers. There are two main grievances. One, they are often asked to attend to the personal chores of the seniors and their family members. Constables posted at the residences of senior officers as orderlies are even required to do menial tasks. Two, the seniors’ treatment of the junior police officials is rough and rude. They often shout and do not hesitate to use abusive language even in the presence of others. As observed by the National Police Commission in its Fifth Report, the manner in which police personnel behave towards public is largely conditioned by the manner in which they are themselves treated by their own higher officers within the force. There is a need for reforms in behaviour and conduct of police officers towards one another.

LYNCH JUSTICE

LYNCH JUSTICE AND THE RULE OF LAW

The incident that occurred in Nagpur city on August 13, involving the women of Kasturba Nagar in the murder of a notorious criminal of that colony inside the court premises, has been prominently in the news.

Details of what happened are not very clear. The police have kept a tight lip and in the absence of information, all types of rumours are flowing thick and fast. The initial reaction in some quarters was to see a police hand in the engineering of the incident, if not in its execution. The talk of this being the result of a gang rivalry, with women providing a cover up, was also heard. Some felt that caste played a role in the entire incident- a predominantly dalit community finally taking its revenge against a goon belonging to a backward caste. Different types of questions are being asked. How could this happen inside the court premises? Why couldn’t the police escort rescue him from the mob? If a similar attempt had been made earlier, why couldn’t the attack be foreseen and adequate arrangements made to safely escort him? Why couldn’t the man do anything to defend himself? Was he unable to do so because, in violation of D. K. Basu’s judgement, he was handcuffed while being brought to the court?

Some of these questions will be answered during the trial of the case. For the time being, let us accept the story as it has been reported and analyse its implications.

The police are prosecuting five women, though 400 are reported to have come forward, openly confessing to the crime. Women have shown no remorse, but, in fact, issued a determined warning they will do it again if another Akku Yadav takes birth. Their argument is that they had suffered enough wrongs through the hands of one man and the entire state machinery had failed to provide security, protection and justice to them. They therefore decided to right all wrongs done to them by taking law in their own hands and in their opinion there was nothing wrong about what they did.

Very few voices of disapproval over what happened have been reported. While the residents of Kasturba Nagar are all united in backing the women, it appears that the public in other places too are sympathetic to what happened. On a TV programme the other day, someone said that the incident was waiting to happen

There are two important reasons for sympathetic public response. One is the fact that the act, as per the story, was done by women, who did not belong to any naxalite or war like group or who had no criminal record. They were simple ordinary women belonging to poor or lower middle class families and had been victims of all kinds of humiliations and atrocities for a long time. The other reason is the helplessness that most citizens experience when they find the system of justice failing them when it is needed most. The system is too slow and inefficient to provide them a feeling of security.

One of the important needs of citizens is to get protection from crime and criminals and they expect the state to provide that. When crime continues to rise menacingly and the state fails to deal promptly, justly and effectively with those who commit crime, it creates a feeling of insecurity. The rich are able to buy security, private as well as public; but most have no means to defend themselves. Their sense of insecurity resulting from fear of crime, combined with a sense of injustice caused by the repeated failure of the system to deal with criminals effectively, gives rise to vigilante incidents. It shows complete collapse of public faith and confidence in the capability of the formal system.

Delivering instant private justice to suspects of crime has very serious implications for the functioning of the criminal justice system and good governance in a democratic society.

Article 14 of the Constitution provides equal protection of laws to all citizens and Article 21 says that no person shall be deprived of his life or personal liberty except according to procedure established by law. Killing a person without legal or judicial sanction constitutes an offence of murder. However, this is not viewed accordingly by the public when they take law in their own hands and beat suspects of crime or known criminals to death. It is such public fear and perceptions, which sometimes provide a licence to the police to ignore the law and deal with crime and criminals by using rough and illegal methods. Blinding of criminals done by Bhagalpur Police way back in early eighties was one example of such licence. This has since been followed by many other incidents.

In fact, killing criminals in fake encounters is a manifestation of police vigilantism. The prominent danger in ignoring public vigilantism, like the Nagpur incident, is that it is likely to promote greater acceptance by the public of police vigilantism.

Fear of crime grows faster than crime and feeds on itself. The State knows this and uses the opportunity provided by the fear of crime to arm itself with repressive powers. It reacts by adopting short-cut methods. Black laws are introduced; powers of the police are enhanced; use of third degree methods by state agencies is overlooked and many rights are curtailed. Instead of the rule of law, rule of fear reigns supreme. In the final analysis, it is the democracy, which really gets “mugged”. This has been happening in many parts of the democratic world since 9/11.

The Government in this country has not devoted adequate attention to reforming the criminal justice system. Its time it did so, enhancing its capability to deal with crime and criminals swiftly and effectively and providing justice to all. The state cannot abdicate its responsibility in this regard. Letting people take law in their own hands and practise ‘lynch justice’ against suspects of crime is to allow the rule of jungle to prevail over the rule of law and is the surest way of sounding the death-knell of the democratic system of governance.

(Original version of the article published in the Indian Express dated September 4, 2004)

REFORM INITIATIVES IN KERALA POLICE

THE KERALA POLICE- RECENT DEVELOPMENTS


The India Today’s '2004 State of the States’ report ranks Kerala No 2 amongst all states. The ranking is based mainly on assessment of economic and social growth parameters chosen for the study.

However, if the CHRI, which is an independent non government international NGO and has been advocating for police reforms all over the country, were to rank states on the basis of initiatives being taken to introduce reforms in one of the most important institutions of governance i.e. the Police, it would unwaveringly place the God’s Own Country at the top of the list. Kerala is the only state in the country where at least an attempt is being made, even though limited, to introduce some changes in the system that has remained unchanged since 1861.

It was 143 years ago that the British set up a police system in this country through the Police Act of 1861. The establishment of the system was governed more by considerations of defending the establishment rather than providing sensitive and friendly policing to the people. The police forces in all the states were structured, groomed and controlled to be loyal and subservient to the rulers and not to the people. The police thus were seen not as servants of law but of the regime in power and this perception has persisted into the 58th year of Independence because no state and no political regime has sought to encourage the transition from a colonial to a democratic system of policing. Major recommendations made by the National Police Commission two and a half decades ago to improve the policing across the country have remained unimplemented. But Kerala is at least trying.

Kerala is the only state in the country, which is showing the political will to change the system. Over the last couple of years, some significant developments have occurred in policing in Kerala. For the first time, the Police are being allowed the autonomy to function without any interference from outside. The police are not brooking any interference from politicians in their day-to-day work and this has been due to the support extended to them by the present Chief Minister. Decisions regarding appointments, transfers, postings, promotions, rewards and punishments in respect of officers up to the rank of Deputy Superintendent of Police are being taken by the Police Headquarters. Consequently, the police leadership is exercising greater, forceful and uninterrupted authority over its men and this has helped in improving the discipline in the force. There is also some evidence of reduction in crime during the last year. According to figures, the total IPC crime in the state came down from 104200 in 2002 to 99790 in 2003. Incidence of murder fell down from 451 in 2002 to 406 in 2003, attempt to murder from 562 to 449 and rape from 449 to 376 during the one-year period.

Politicians, of course, have not welcomed the development of freeing the police from their clutches. It has hit them where it hurts most and that is why there is a great orchestrated clamour for reversion to the earlier system. A loosening of hold over the local police means a tremendous loss of influence in their constituencies. While the grievance of some is that the Chief Minister wants to concentrate all power in his hands; the complaint of many is that the illegitimate influence peddling of the earlier era has not been reduced. “Faceless middlemen” have taken their place and are exercising illegitimate control over the police. Politicians were at least known faces and could be called to account for their misdeeds, but the new middlemen being faceless, private interests rather than public figures get away with influence peddling.

The Chief Minister has shown enormous courage to resist the demands for reversion to the earlier system. However, the new initiatives are under threat from many sides and for many reasons.

One, they are fairly tenuous because they have not been given any statutory backing. The Chief Minister thinks that once the police can show to the public that they can function professionally when they are given a free reign, no party or the government will have the courage to dismantle the initiatives.

Two, the reforms have not been introduced as a package of comprehensive measures supporting each other. Any move to give functional autonomy to the police should have been accompanied with the establishment of institutional arrangements that would lead to speedy inquiry into citizens’ complaints against police personnel and provide redress. The Government of Kerala did set up a Police Performance and Accountability Commission on November 18, 2003. , but its charter is too limited to enable it to function as an effective accountability mechanism. It has only two terms of reference. Besides evaluating the general performance of the police during the last two years and making periodic recommendations to improve the functioning of the police, the Commission is asked to “ examine the effectiveness of the autonomy given to the police in recent times, its merits and demerits and to suggest measures for further improving the functioning and accountability of the police.” The Commission does not supervise the investigation of individual cases or entertain individual complaints, though it can suggest measures for improving investigation in general.

Three, the biggest threat comes from the perennial scourge of the police- their corruption. According to some, freedom given to the police has resulted in increasing the incidence of corruption in the police. Reform requires not only that illegitimate political interference come to a stop but that the police take responsibility for providing honest, unbiased and efficient service to the public.

This puts a tremendous responsibility on the shoulders of police leadership at different levels in that state. The police have always blamed interference from their ‘political masters’ as a major justification for poor performance. With this curbed, it is for them to show that they will not ally with other influence peddlers and vested interests in the performance of their duty but stay steadfast to their mandated duty to protect the public interest and uphold the law. They cannot let this opportunity be wasted. On their performance depends not only their survival as an autonomous police force but also of the growth of accountable democratic policing in other states. If the transition from the regime police force to a democratic police service has to occur in other parts of the country, Kerala has the opportunity to take the lead, but the police there have to show that they are mature and competent enough to set an example for other states in the country to follow.

The Congress party at the center has to realise the enormous significance of developments in policing in Kerala and extend support to the present Kerala CM against his opponents within as well as outside the party. It will be a sad day if the chief minister is divested of Home portfolio and the new incumbent allows the recent reform initiatives to fall flat without support.